SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBERTS
[2016] SASCFC 41
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
19 April 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BREACH AND REVOCATION
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY
On 17 August 2012, the appellant was sentenced by a Judge of the District Court for one count of aggravated robbery and one count of attempted aggravated robbery to a term of imprisonment of four years, five months and 28 days with a non-parole period of two years. The sentence was reduced from a starting point of imprisonment for seven years to five years to take account of the appellant’s guilty plea. The sentence was further reduced to four years, three months and 11 days to take account of eight months and 19 days already served in custody on remand. When the offences were committed, the appellant was on parole for earlier offending. As a result, the total of his sentences was increased by two months and 17 days representing the unexpired balance of that parole period.
On 29 September 2014, the appellant was released on parole. This was two years, one month and 12 days from the date of sentence and two years and 10 months from his return to custody. The appellant’s parole conditions included conditions to abstain from illicit drugs and to submit to urine testing.
On 25 February 2015, the appellant provided a urine sample that tested positive for methylamphetamine. On 4 March 2015, the appellant’s parole was cancelled and he was returned to custody. On 8 December 2015, a new non-parole period was set by the Judge of 16 months in relation to the outstanding sentence of one year, 11 months and 16 days. The commencement of the non-parole period was backdated to 4 March 2015.
The sole ground of appeal was that the non-parole period fixed by the sentencing Judge was manifestly excessive.
Held (per the Court):
1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [14]).
2. The principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence, apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) Criminal Law (Sentencing) Act 1988 (SA) after cancellation of a prisoner’s parole, as a result of a breach of parole. The additional factor is that, in fixing a new…
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- R v Roberts [2016] SASCFC 41
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- [2016] SASCFC 41
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CaseChat Overview and Summary
The central legal issue before the court was the principles applicable to fixing a new non-parole period for a prisoner whose parole has been revoked due to a breach of a condition. Specifically, the court had to determine how the seriousness of the breach, the offender's prospects of rehabilitation, and the need for deterrence should be weighed in this determination. The court also considered whether the sentencing judge had erred in fixing the new non-parole period at 16 months.
The court reasoned that while a breach of parole typically warrants closer attention to the seriousness of the breach and may adversely affect prospects of rehabilitation, these are factors to be weighed in the sentencing discretion. The court noted that the appellant's breach, a relapse into drug use, was a foreseeable setback given his history of drug addiction. Crucially, the breach did not involve further criminal conduct, and the appellant was actively seeking treatment for his addiction. The court found that the 16-month non-parole period was excessive and did not adequately reflect these mitigating circumstances.
Allowing the appeal, the court set aside the 16-month non-parole period. A new non-parole period of 13 months and 15 days was fixed, commencing from the date of the parole cancellation.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As was observed by Kourakis J in Foley v Police,[27] in R v Wilson[28] the offender breached parole by breaching a designated condition. In those circumstances, it was understandable that particular attention needed to be given to the seriousness of the breach. The gravity of the breaching offence may inform both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. At least two factors affecting the fixing of the non-parole period when parole has been breached suggest that it will be a higher proportion of the head sentence in those cases than otherwise. First, the breach itself will usually reflect adversely on the prospects of rehabilitation. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole. However, these considerations are merely factors that must be weighed in the balance in the exercise of the sentencing discretion. This is consistent with the approach Stanley J took in R v Earley.[29][27] [2008] SASC 338 at [24] and [26].[28] [1999] 203 LSJS 459.[29] [2014] SASC 202.Consideration In this case the appellant was serving a sentence of imprisonment for serious offences that had their genesis in an underlying drug addiction. The Judge who imposed the original sentence of imprisonment of four years, five months and 28 days fixed a non-parole period of two years. If the Judge had back-dated the sentence instead of reducing it by eight months and 19 days for time in custody, the total head sentence would have been five years together with two months and 17 days for the earlier unexpired parole. The non-parole period would have been two years, eight months and 19 days, being 52 per cent of the head sentences. The appellant was released on parole on 29 September 2014 after serving two years and 10 months from the time he was taken into custody. The appellant was on parole for four months and 26 days before he breached the condition of his parole that he abstain from using illicit drugs. The Director submits that this breach of the parole conditions is serious because it represented a lapse into drug taking. That is significant in this context because there is a clear nexus between the appellant’s past drug use and serious criminal conduct by him to support that drug taking. In these circumstances, there is no error by the sentencing Judge in fixing a non-parole period of 16 months which must have been informed by the need to protect the community from the risk that the appellant’s prospects of rehabilitation are poor and the chance that once released he might relapse into the commission of similar crimes. Accordingly, the length of the non-parole period reflected the need for specific and general deterrence and protection of the public. We do not accept this submission. It is relevant that, given the appellant’s history of drug use, the nature and circumstances of the breach which resulted in the cancellation of his parole is the very kind of set-back that could be expected because of his drug addiction. In this context, it is significant that the appellant was seeking treatment for his drug addiction, the breach did not involve a descent into further criminal conduct, and he did not commit any other breach of his parole after his release on 29 September 2014.